ISMAIL KALUBHAI GHARASIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Appellant-original accused of Special (Atro.) Case No.15 of 1996 has challenged the judgment and order of conviction and sentence recorded by the learned Addl.Sessions Judge, Surat by which the learned Trial Judge has convicted the accused for the offences under Sections 363, 366 and 376 of I.P.C. and under Section 3(1)(II) of Atrocities Act and after hearing on the point of sentence, the learned Trial Judge has passed order of sentence for R.I. for 7 years and fine of Rs.1000/- in default S.I. for 3 months for the offence under Section 363 of the I.P.C. and sentence for R.I. for 10 years and fine of Rs.1500/- in default S.I. for 3 months for the offence under Section 366 of the I.P.C. and sentence for R.I. for 10 years and fine of Rs.2000/- in default S.I for three months for the offence under Section 376 of the I.P.C. and sentence for R.I. for 6 months and fine of Rs.500/- in default S.I. for 1 month for the offence under Section 3(1)(II) of the Atrocity Act and all the sentences imposed on him were ordered to run concurrently. Appeal filed by appellant accused in which the prayer for bail was considered when the matter was notified for admission. As per order dated 28.8.1998 the Division Bench has admitted the Appeal and the prayer for bail was not pressed. Accordingly this Appeal is notified for final hearing.

(2.) We have heard Mr.Saurin Shah, learned advocate, who appeared for the appellant and Mr.Abichandani, learned Addl.P.P., who appeared for the respondent-State. Mr.Shah appearing for the appellant has vehemently urged that the learned Trial Judge has committed error in appreciating the evidence with the result that the learned Trial Judge has accepted the evidence of the prosecution witnesses and held that the prosecution has established the case beyond reasonable doubt and the accused is convicted for the above offences, which resulted into miscarriage of justice. He next urged that as found from the evidence of victim Sunita, being a minor, she in turn has stated that she was not knowing the accused and the learned Trial Judge has while appreciating her evidence not properly looked into the aspect that as found from her evidence she has not identified the accused even after the accused was arrested and no identification parade was arranged in which Sunita has identified the accused. According to Mr. Shah that there is every possibility of misidentity of the accused and according to Mr.Shah that the conviction recorded by the learned Trial Judge deserves to be set aside by giving benefit of doubt to the appellant accused. Mr.Shah next urged that in light of the evidence of victim Sunita, who is a minor between 9 to 10 years, and as found from her evidence wherein at the time of committing rape on her on the fateful night according to her she had sustained some injuries on the back portion of her body and further that she has also tried to assault the accused person, who had committed rape and admittedly as found from the medical evidence, there is no injury found on victim Sunita nor any injury is found on the accused person and this is a case in which at least the accused deserves to be entitled for benefit of doubt. He next urged that there is also a delay in lodging the FIR as according to the prosecution case, the incident in question has occurred on the night, i.e. on 9.12.1995 after 8.30 p.m. and the incident has occurred in the sim of the field of Kudsad village and the complaint was lodged before the police on 12.12.1995. Mr.Shah has accordingly urged that there is a delay for about 2 days in not disclosing the offence and that is fatal to the prosecution. He next urged that the independent evidence of witness Chhotubhai examined by the prosecution as P.W.6 also does not suggest that victim Sunita has disclosed before him that she was subjected to rape by the accused person at the field when she reached at the field where Chhotubhai was working in a field with other labourers and even victim Sunita has not disclosed any incident of rape on her by the accused person. According to Mr.Shah that there is no other evidence corroborating the evidence of Sunita by which the evidence of Sunita is created doubt and that doubt must be available to the accused by giving benefit of doubt. Mr.Shah has also while taking us through the evidence and even with regard to the medical evidence and the serologist's report, submitted that the evidence is not complete to connect the accused and accordingly prayed that the Appeal filed by the accused be allowed and at least by allowing the Appeal the order of conviction and sentence recorded by the learned Trial Judge be set aside by giving benefit of doubt. He alternatively submitted that at least looking to the facts of the present case, the sentence imposed by the learned Trial Judge on all the counts deserves to be modified by reducing the same as according to him that for the offences punishable under Sections 366 and 376 of the I.P.C., the learned Trial Judge has imposed sentence of RI for 10 years and the same be modified to some extent and he requested that the sentence undergone be passed.

(3.) Mr.Abichandani, learned Addl.P.P., has vehemently urged that this is a case in which a minor girl Sunita aged about 9 years was subjected to rape on the night of 9.12.1995. She was helpless as her father has gone to purchase rice for which they are required to prepare the food to eat by way of dinner. Younger brother was playing near the hut of the victim and the accused had with the intention to commit offence took her from her hut by tempting her that he will provide Bread (Rotla). By tempting the victim Sunita in absence of her father at the house, the accused has taken her at a field in the village at a far distance from the hut of the victim. Not only that after taking Sunita in the field, the accused has committed heinous crime of committing rape. Mr. Abichandani has also taken us through the evidence of victim Sunita P.W.2, who in turn has deposed that she was subjected to rape by the accused on the fateful night. Mr. Abichandani has also taken us through the medical evidence wherein as per the medical evidence when Sunita was taken for examination before Dr. Bhavnaben Rajan P.W.3, the Doctor has examined her on 12.12.1995 and she was also admitted as an indoor patient for 5 days where even the private part of Sunita was also badly damaged and the Doctor has also applied about 4 stitches on her. Dr. Anjanaben Dighe P.W.4, who is also working as Assistant Professor in the Hospital, has also corroborated the evidence of Dr. Bhavnaben P.W.3. The medical certificate of injuries found on Sunita are proved which is at Exh.9. Mr. Abichandani has accordingly urged that even as found from the cross-examination of the medical officers, there is hardly any suggestion is made for which one can consider about the defence of the accused. According to Mr.Abichandani that when the learned Trial Judge has accepted the prosecution case and the facts as established from the evidence of victim Sunita, the learned Trial Judge has rightly believed the prosecution case and once the prosecution has established the case even through the victim and the medical evidence led by the prosecution of Dr.Bhavnaben P.W.3 and Dr.Anjanaben Dighe P.W.4, there is hardly any necessary to even consider for contention raised by Mr.Shah to give any benefit of doubt to the accused. Mr.Abichandani has also placed reliance upon the evidence of Doctor attached to the Hospital at Surat by which the accused was examined medically on 12.12.1995 and Serologist's report and the other report produced on the record of the case, and according to Mr.Abichandani that in view of the finding recorded by the learned Trial Judge, this is not a case in which this Court is required to interfere even by giving benefit of doubt to the accused. In respect of the contention of Mr.Shah for reducing the sentence, he contended that once it is established by the prosecution that the accused was responsible for committing rape on a minor girl Sunita, who is completely innocent and uneducated and she was staying with her father as she has also lost her mother, no leniency is required to be shown on the accused even by reducing the sentence as submitted by Mr.Shah and accordingly prayed that the Appeal filed by the accused be dismissed and confirm the order of conviction and sentence recorded by the learned Trial Judge. He has also submitted before us by placing the jail statement which shows that the accused was released on temporary bail for 28 days and he was to surrender to the jail within time. However, he has absconded and he was only found and arrested by the police on 8.3.2003 and thereby he has committed another offence which was registered at Olpad Police Station under N.C.C.R.No.I-2/2003 and the accused was tried before the Magistrate in Criminal Case No.507 of 2004 and the learned Judicial Magistrate, First Class at Olpad has as per judgment and order of conviction dated 30.1.2004 convicted the accused for the offence, namely, for Section 51(A)(B) of the Prison Act and ordered to suffer S.I. for 6 months and the sentence imposed in the said case is ordered to start running after the sentence in the present case is over.